Former Assistant U.S. Attorney Andy McCarthy sounded off after a federal judge granted Donald Trump’s request for a special master to review materials seized at Mar-a-Lago. McCarthy explains what we know so far about the documents seized and noted how badly the Department of Justice screwed up the entire investigation.
McCarthy noted, “It’s a big win for the Trump team and a potentially explosive ruling if it holds. I would imagine it’s important enough that the government will appeal this immediately. In a nutshell, what happened here is the Justice Department assumed that Trump only had attorney-client privilege, that he did not have executive privilege, or at least to the limited extent that as a former president he maintains executive privilege, it can’t be asserted against the executive branch itself.”
He continued, “It’s one thing for the government to have that theory, I think it actually may be a sound theory. The problem is it’s not 100% settled, so I thought it was incumbent on them to get a ruling from the court on that question before they hauled off did what they did, which was have the privilege team go through all the seized documents assuming that Trump only had attorney-client privilege and then allowing all of the potentially executive privileged documents to go to the prosecution team.”
If it turned out they are privileged, that could taint the prosecutors who reviewed them and it could also taint their investigation because they are now conducting an investigation.
McCarthy went on to explain how the DOJ may have tainted the entire investigation by holding and viewing privileged material, “they got these documents two weeks ago, and they have had these documents, the prosecution team has, for about a week. So they have been merrily conducting their investigation with the agents assuming all the documents were appropriate for the investigation. Now the judge is saying hold everything, he may have the executive privilege.”
Assuming that the documents they seized from Trump’s home were not under his executive privilege tainted their entire investigation and may have just tossed the case as a whole. Trump’s lawyers shouted early on that the FBI took documents covered under client-attorney privilege so we already know that the problem of bias already exists. Now we wait to see what the special master discovers to see what really happened.